Oehlhof v. Solomon

The plaintiff alleges that the defendants sold to him the fixtures, fittings and good will of a meat business carried on by them, and promised to assign to him their lease of the shop in which the business was carried on, falsely representing, as an inducement to the plaintiff to make such agreement, that they, the said defendants, had a right to assign such lease, whereas in fact by the terms of the lease itself they had no right to assign it, or to sublet the premises without the consent of the landlord. Our attention has been called to several alleged errors upon the trial, but it will not be necessary to examine all of them. At the request of the plaintiff, the court charged the jury that they might grant punitive damages if they found that the representations had been made willfully and with knowledge that they could not be carried out, up to the amount of $1,200. This was clear error. There was nothing in the case to warrant the submission of the question of punitive damages to the jury, and from the very large verdict rendered we cannot but assume that this error prejudiced the defendants.

The plaintiff insisted upon the trial and still insists that his action is for damages for false representation, and not for breach of contract. If upon the facts of the case he can recover at all upon this theory, he certainly cannot so recover against the defendant Lena Solomon, for although she may have been interested in the sale to plaintiff, the evidence fails to show that she had made any representations whatever.

The evidence as to a prior transaction in which one Bollman was concerned was improperly admitted, for it nowhere appears 1 hat the landlord’s aversion to permitting the store to be used "for a butcher shop was ever communicated to the defendants.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellants in this court and in the court below to abide the event.

Present: Tbuax, P. J., Scott and Dugbo, JJ.

Judgment and order reversed and new trial ordered, with costs to appellants in this court and court below, to abide event.